FIRST SECTION

DECISION

Application no. 20364/07 by Stavros MARANGOS against Cyprus

The European Court of Human Rights (First Section), sitting on 23 September 2010 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , judges, and André Wampach , Deputy S ection Registrar ,

Having regard to the above application lodged on 30 April 2007,

Having regard to the declaration submitted by the respondent Government on 30 December 2009 requesting the Court to strike the application out of the list of cases and the applicant ' s reply to that declaration,

Having regard to the fact that Mr G. Nicolaou, the judge elected in respect of Cyprus , was unable to sit in the case (Rule 28 of the Rules of Court) and that the Government accordingly appointed Mr S.E. Jebens , the judge elected in respect of Norway , to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 1 as in force at the time) ,

Having deliberated, decides as follows:

PROCEDURE

The application was lodged by Mr Stavros Marangos, a Cypriot national who was born in 1959 and lives in Nicosia . He was represented before the Court by Mr S. Drak os , a lawyer practising in Nicosia . The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus .

The facts of the case, as submitted by the parties, may be summarised as follows.

On 3 July and 9 August 2000 t he applicant made two applications for appointment in different sections o f the civil service. On 10 July and 11 September 2001 respectively both of his applications were refused by the Civil Service Commission on the ground that he had not performed his military service or been legally exempted from it as required by the Civil Service Law (Law 1/1990 as amended) .

A. First instance proceedings

On 21 September 2001 the applicant lodged a recourse before the Supreme Court (first-instance revisional jurisdiction) challenging the relevant decisions of the Civil Service Commission (recourse no. 782/01).

On 24 September 2002 the applicant filed an application requesting the court ' s leave to amend the legal grounds of his recourse. The applicant sought to add, amongst other things, that certain provisions of the National Guard Law (Law 20/1964, as amended) concerning obligatory military service were contrary, inter alia , to Article 28 of the Constitution (prohibition of discrimination).

In its interim decision of 24 February 2003 the Supreme Court dismissed the application. It held that whether or not the applicant was entitled to be exempted from military service was not a contested issue in the pending proceedings and, as such, could not be examined. This matter could possibly be raised in the context of a recourse which concerned the existence or not of an obligation on the applicant ' s part to fulfil his military service. The issue under dispute in the proceedings before the court was the lawfulness of the decision by the Civil Service Commission dismissing the applicant ' s application for lack of fulfilment of the requirement of completion of military service.

On 17 October 2003 the Supreme Court dismissed the recourse and made an order for costs against the applicant. It justified the dismissal by referring to the reasons set out in its previous interim decision and, in particular, that the applicant did not meet one of the basic requirements for appointment to the civil s ervice.

B. Appeal proceedings

On 28 November 2003 the applicant lodged an appeal before the Supreme Court (appellate revisional jurisdiction) against the first-instance judgment of 17 October 2003 and the interim decision of 24 February 200 3 (appeal no. 3729) . The applicant challenged the findings of the first instance court. He argued primarily that the first instance court should have examined his complaints as to the unconstitution ality of the Civil Service Law and the National Guard Law as well as his argument concerning whether or not he was entitled to be exempted from military service.

On 2 August 2004 the applicant filed an application for legal aid.

On 4 October 2004 his application for legal aid was rejected by the Supreme Court.

The appeal was then listed for directions on 11 March 2004.

The applicant submitted the outline of his written address on 30 July 2004 and the respondents on 14 September 2004.

The appeal was heard on 9 October 2006.

On 3 November 2006 the Supreme Court dismissed the applicant ' s appeal. It held that the complaint of unconstitutionality in relation to the Civil Service Law had not been raised by the applicant ' s lawyer in accordance with the requirements set out in the relevant procedural provisions and case-law given that it had only been set out in a vague and imprecise manner in the recourse. The court further took into account the points raised by the applicant ' s lawyer in his written address to the c ourt . It found that the vague suggestions made concerning the unconstitutionality of the Civil Service Law and the National Guard Law had no legal foundation and were irrelevant to the subject-matter of the recourse. No other ground for annulment of the relevant decision had been raised or shown.

COMPLAINTS

1. The applicant complain ed under Articles 6 § 1 and 13 of the Convention about the length of the proceedings before the Supreme Court and the lack of an effective remedy in this respect.

2. The applicant further complained under the above provision about the fairness of the proceedings. In particular, the applicant complain ed that the Supreme Court had failed to examine his arguments concerning whether or not he had been entitled to be exempted from military service and had dismissed his application to amend the legal grounds of his recourse.

3. Finally, the applicant complain ed of a violation of Article 14 of the Convention in conjunction with his fairness complaint under Article 6 § 1. He claimed in this respect that the provi sions of the National Guard Law on obligatory military service were discriminatory.

THE LAW

A. Length of proceedings and the lack of an effective remedy in this respect

The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. He relied on Article 6 § 1 and 13 of the Convention which, in so far as relevant, provide as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13

Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

By a letter dated 30 December 2009 the Government informed the Court that they proposed to make a unilateral declaration wit h a view to resolving the issues raised in this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provide s as follows:

“1. The Government wishes to express - by way of a unilateral declaration - its acknowledgement that in the special circumstances of the present case the length of the proceedings did not fulfil the requirement of “reasona ble” referred to in Article 6 § 1 of the Convention and no “effective remedy” referred to in Article 13 for the abovementioned violation was at the applicant ' s disposal.

2. Consequently, the Government is prepared to pay the ap plicant a global amount of EUR 5,500 (covering pecuniary and non-pecuniary damage and costs and expenses). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned length of the said proceedings and the lack of an effective remedy, and thus an acceptable sum as to quantum in the present case.

3. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision pursuant to Article 37 § 1 (c) of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute the final settlement of the case.

4. Respecting the Government ' s acknowledgment that there was no “effective remedy” at the applicant ' s disposal the Government states that it has introduced in the legislature (House of Representatives) on 14.7.09, specific legislation for creating national remedies for complaints of violation of the reasonable time requirement of Article 6 § 1 of the Convention in the determination of civil rights and obligations. The legislature completed its examination of the relevant Bill ( entitled, “ A Law Providing Effective Remedies for Violation of the Right to have Civil Rights and Obligations Determined within a Reasonable Time ”) before its Christmas recess, and it is expected that it will approve the Bill as soon as it resume work in mid January 2010.

5. The Bill applies to complaints about the length of court proceedings in all civil and administrative cases (at all levels of jurisdiction); complainants may institute civil proceedings in district courts for violation of the right and payment of compensation and may also do so where the complaint is with respect to court proceedings concluded before the law enters into force.

6. Complaints may also be made respecting the length of pending proceedings; a party may make an application to another court at any stage of the pending proceedings, complaining of their length and claiming compensation; the complainant is entitled to examination and judgment on his complaint, and to compensation for the violation; such an application may also be made respecting complaints about the length of proceedings which are pending when the law enters into force; in addition to compensation, directions must be given by the Supreme Court for expediting the pending proceedings; for this purpose the trial court must transmit its judgment to the Supreme Court.

7. The Bill provides that in determining the issues of violation and assessment of compensation in the above domestic proceedings the courts must take into account the case-law of the European Court of Human Rights.

8 . In light of the above, the Government would suggest that the circumstances of the present case allow your Court to reach the conclusion that there exists ' any other reason ' , as referred to in Article 37 § 1 (c) of the Convention, justifying your Court to discontinue the examination of the application, and that, moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine , which would require the further examination of the case by virtue of that provision. Accordingly, the Government invites your Court to strike the application out of its list of cases.”

In a letter dated 22 February 2010 the applicant requested the Court to proceed with the examination of his application. He pointed out that the Government ' s proposal did not take into account the significant damage the applicant had suffered due to the unreasonable length of the proceedings. In particular, he had suffered loss of career prospects and all related benefits, including pension as well as the chance to become a permanent Government employee . Furthermore, the Government had not taken into account his age: he no longer had the same competitive edge in government competitions, whilst due to the delay in the proceedings he had now exceeded the maximum age limit for carrying out compulsory military service and therefore he could not raise the issue before the domestic courts.

In a letter of 10 March 2010 the Government informed the Court that the bill establishing a domestic remedy for length of proceedings had been approved by the legislature and that the relevant Law (Law 2 (I)/2010) had entered into force on 5 February 2010.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spóÿka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwiÿska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, its practice concerning complaints about the violation of one ' s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ V; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007). Furthermore, it has already had occasion to address complaints related to the alleged breach of one ' s right to a hearing within a reasonable time and the lack of an effective remedy in this respect in a variety of cases against Cyprus (see, for example, Mylonas v. Cyprus , no. 14790/06, 11 December 2008; Ouzounian Barret v. Cyprus , no. 2418/05, 18 January 2007 ; Gavrielides v. Cyprus , no. 15940/02, 1 June 2006 ; Lerios v. Cyprus , no. 68448/01 , 23 March 2006 ; Paroutis v. Cyprus , no. 20435/02, 19 January 2006 ).

The Court observes that the Government ' s declaration contains a clear acknowledgment of a breach of Articles 6 § 1 and 13 of the Convention. Furthermore, the Court takes cognisance of the entry of Law 2(I)/2010 establishing national remedies for complaints of a violation of the reasonable time requirement of Article 6 § 1 of the Convention. Last but not least , the Court is satisfied that the total amount offered to the applicant by the Government in compensation for non-pecuniary damage and costs and expenses constitutes adequate redress for the excessive length of the proceedings having regard to all the circumstances of the case, and that this amount is consistent with the amounts awarded by the Court in other similar cases.

Against this background, the Court considers that it is no longer justified in continuing the examination of this part of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. Remaining complaints

In so far as the applicant ' s remaining complaints under Articles 6 § 1 and 14 of the Convention are concerned, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ' s declaration in respect of the complaints under Article s 6 § 1 and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

             André Wampach Christos Rozakis Deputy Registrar President